Which murder sentencing and parole rules applied at a resentencing for a crime committed before 1996?

Plain-English summary

In 2011, the South Carolina Attorney General addressed a pending resentencing for a defendant whose second murder was committed before the 1996 effective date of an amendment to the murder sentencing statute. The AG concluded that the sentencing alternatives in effect when the crime was committed governed, because the Legislature expressly made the later amendment prospective for crimes committed on or after its effective date. The available punishment for the described crime was death or life imprisonment under the former statute.

The AG also concluded that the defendant's earlier murder conviction made him ineligible for parole on the second murder conviction under the repeat-violent-crime parole statute. It did not predict how a trial or appellate court would decide the particular proceeding and left prosecution decisions to the circuit solicitor.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Did resentencing give the defendant the benefit of the later murder-sentencing amendment? A: The AG said no for the crime described. The amendment expressly applied to crimes committed on or after its effective date, and the second murder preceded that date.

What punishment did the AG identify under the earlier murder statute? A: For the circumstances supplied, the opinion identified death or life imprisonment under the version of the murder statute in force when the crime occurred.

Could the defendant receive parole on a life sentence for the later murder? A: The AG concluded he was ineligible for parole consideration on that conviction because he had a previous murder conviction.

Did the AG decide the pending resentencing?
A: No. It supplied its reading of the law and expressly declined to predict the court's decision in the specific case.

Background and statutory framework

A circuit solicitor described a defendant convicted of one murder and later convicted of a second murder, with the death sentence for the second conviction overturned. The AG examined the prospective effective-date clause in the amendment to § 16-3-20 and the no-parole rule in §24-21-640 for a second or subsequent violent-crime conviction. It relied on State v. Gay for the effect of the amendment's express effective date and on State v. Dingle when discussing separate convictions.

Citations and references

The opinion discusses § 16-3-20 and §24-21-640 alongside the Gay and Dingle decisions. It reserved judgment about how a court would decide the particular resentencing.

Official title

Concerning the pending resentencing trial of a defendant in a capital murder case in your judicial circuit.

Requester

The Honorable Barry J. Barnette, Solicitor, Seventh Judicial Circuit, Spartanburg County Courthouse

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-24-2011/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/barnette-b-j-os-9252-5-24-11-pending-resentencing-trial-capital-murder-case.pdf

Original opinion text

ALAN WILSON
ATIORNEY GENERAL

May 24, 2011

The Honorable Barry J. Barnette
Solicitor
Seventh Judicial Circuit
Spartanburg County Courthouse
180 Magnolia Street
Spartanburg, SC 29306
Dear Solicitor Barnette:
We received your opinion request concerning the pending resentencing trial of a defendant in a capital murder case in your judicial circuit. By way of background information, you state the defendant was convicted in 1995 for murder and possession of a weapon during the commission of a violent crime. He received a sentence of life imprisonment. The defendant was later convicted of a second murder committed under the law prior to the 1996 amendments to S.C. Code Ann. § 16-3-20. He was sentenced to death. The death sentence was subsequently overturned following a post-conviction relief hearing. You request this office to address the following issues regarding the resentencing trial of the defendant: I . Is the defendant entitled to the benefit of the sentencing changes to § 16-320 after he committed the murder? 2.

ls the defendant ineligible for parole pursuant to §24-21-640 if he receives a life sentence? Law/Analysis

At the time the defendant committed the second murder, 1 § 16-3-20 (A) provided that:
[a] person who is convicted of or pleads guilty to murder must be punished by death or by imprisonment for life and is not eligible for parole until the service of twenty years; provided, however, that when the State seeks the death penalty and an aggravating circumstance is specifically found beyond a reasonable doubt pursuant to subsections (B) and (C), and a recommendation of death is not made, the court must impose a sentence of life imprisonment without eligibility for parole until the service of thirty years ...

1 Upon information and belief, the second murder was committed by the defendant on April 16, 1995.

REMBEIIT c. DENNIS BURDING • POST OFFICE Box 11549 • COLUMBIA, SC 29211-1549 •

'IELEPRONB 803-734-3970

• FACSIMILB 803-253-6283

The Honorable Bany J. Barnette
Page2
May 24, 2011

In 1995 Acts No. 83, § J0, the statute was amended to provide the following:
[a] person who is convicted of or pleads guilty to murder must be punished by death, by imprisonment for life, or by a mandatory minimum term of imprisonment for thirty years. If the State seeks the death penalty and a statutory aggravating circumstance is found beyond a reasonable doubt pursuant to subsections (B) and (C), and a recommendation of death is not made, the trial judge must impose a sentence of life imprisonment. For purposes of this section, "life imprisonment" means until death of the offender. No person sentenced to life imprisonment pursuant to th is section is eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory life imprisonment required by this section. No person sentenced to a mandatory minimum term of imprisonment for thirty years pursuant to this section is eligible for parole or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory minimum term of imprisonment for thirty years required by this section. We note that this Act which amended §16-3-20 specifically addressed its effective date. Section 62 states that the Act "takes effect January 1, 1996, and applies prospectively to all crimes committed on or after that date ..." 1995 Acts No. 83, §62 [Emphasis added). In interpreting a statute, the primary purpose is to ascertain the intent of the Legislature. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987); Multi-Cinema. Ltd. v. South Carolina Tax Comm'n., 292 S.C. 411, 357 S.E.2d 6 ( 1987). The legislative intent must prevai l if it can be reasonably discovered in the language used, which must be construed in the light of the intended purpose of the statutes. Gambrell v. Travelers Ins. Co., 280 S.C. 69, 310 S.E.2d 814 (1983). We have repeatedly advised that the retrospective operation of a statute is not favored by the courts. Ops. S.C. Atty. Gen. May 20, 2003; August 21, 2000; January 22, 1996 [citing Sutherland, Statutory Construction, §41.04 (41h ed. 1986)]. Statutes are presumed to be prospective in effect. State v. Davis, 309 S.C. 326, 422 S.E.2d 133, 139 (1992), overruled on other grounds by, Brightman v. State, 336 S.C. 348, 520 S.E.2d 614 (1999). Accordingly, the South Carolina Supreme Court has frequently recognized that "[a] statute is not to be applied retroactively unless that result is so clearly compelled as to leave no room for doubt." Am. Nat. Fire Ins. Co. v. Smith Grading and Paving, 317 S.C. 445, 454 S.E.2d 897, 899 (1995). The South Carolina Supreme Court addressed this precise issue in State v. Gay, 343 S.C. 543, 54 1 S.E.2d 541 (200 I), abrogated on other grounds by Holmes v. South Carol in~ 547 U.S. 319 (2006). In Gay, the defendant was charged with a December 3 1, 1995, murder. He was convicted in 1997, and the trial court sentenced him to mandatory life imprisonment. On appeal, the defendant maintained that

The Honorable Bany J. Barnette
Page 3
May 24, 2011

because the statute in effect at the time of sentencing al lowed a thirty-year sentence, whereas the statute in effect at the time of the crime mandated life imprisonment, the trial court should have considered the statute in effect at the time of sentencing. Gay, 541 S.E.2d at 546. Specifically, the defendant relied on the Court's decision in State v. Vam er, 310 S.C. 264, 423 S.E.2d 133 ( 1992), where the Court stated that "[i]n the absence of a controlling statute, the common law requires that a convicted criminal receive the punishment in effect at the time he is sentenced, unless it is greater than the punishment provided for when the offense was committed." Id., 423 S.E.2d at 133. However, the Gay Court explained that in Varner, it indicated the Legislature could state its intent for new, lesser penalties to take effect based on the date of the crime rather than the date of sentencing. Gay, 541 S.E.2d at 546 [citing Vamer, 423 S.E.2d at 134 n. 3]. Because the Legislature expressly stated in 1995 S.C. Acts No. 83, §62, its intent for prospective application based upon the date of the crime's commission, the Court held the general rule of Varner did not apply. The crime in Gay was committed on December 31, 1995, one day before the amended statute's effective date; therefore, the Court concluded the trial court correctly sentenced defendant to a mandatory term of life imprisonment. Gay, 541 S.E.2d at 546. We also note that in 1986 Acts No. 462 (the Omnibus Criminal Justice Improvements Act of 1986), the Legislature amended §24-21-640 concerning circumstances warranting parole so as to provide that parole is not authorized to any prisoner serving a sentence for a second or subsequent conviction for a violent crime as defined in § 16-1-60. Violent crime is defined to include, inter alia, the offense of murder. Therefore, if any prisoner is convicted of the above crime for a criminal event that occurred after June 3, 1986, and has a prior conviction at any time (before or) after June 3, 1986 (the effective date of the 1986 Act) for one of the specified crimes, that prisoner is not eligible for parole consideration on the recent conviction and must complete service of his entire sentence.2 See Ops. S.C. Atty. Gen. July 20, 1989; October 9, 1986; see also State v. Dingle, 376 S.C. 643, 659 S.E.2d 101, 105 (2008)[holding that in order to trigger the no-parole language in the parole statute, a defendant must not only have a separate sentencing hearing, but he or she must also have a separate conviction]. Conclusion In summary, based on the foregoing, we conclude that a defendant convicted or pleading guilty to murder under the circumstances presented in your letter must be punished by death or by imprisonment for life pursuant to the provisions of§ 16-3-20 (A) on the date that he committed the offense. In addition, such defendant would be ineligible for parole consideration on the murder conviction in accordance with We also concluded in our opinion on October 9, 1986, that there were no ex post facto problems in the application of the provision, citing McDonald y. Massachusetts, 180 U.S. 311 (1901), where the United States Supreme Court indicated that an enhancement statute's "punishment is for a new crime only ... The statute imposing a punishment on none but future crimes is not ex post facto." M., 180 U.S. at 313; ~ 9Wl; Sullivan v. State, 331 S.C. 479, 504 S.E.2d 110, 110 (1998)[finding a defendant, who had a prior conviction for assault and battery with intent to kill, could be denied parole following subsequent conviction for voluntary manslaughter under statute that provided that parole could not be granted to or authorized for any prisoner serving a sentence for a second or subsequent conviction for a violent crime, even though assault and battery with intent to kill was not classified as a violent crime at time of prior conviction]. 2

The Honorable Barry J. Barnette
Page4
May24, 2011

§24-21-640, because of his previous murder conviction. We cannot, of course, predict how a trial or appellate court facing this issue would decide the matter. Ops. S.C. Atty. Gen., November 10, 2004; August 13, 2001. This office further adheres to its long-standing policy that prosecution of a particular individual is a matter within the discretion of the Circuit Solicitor. Ops. S.C. Atty. Gen., October 29, 2004; April 20, 2004; February 3, 1997. You, as the Solicitor, are the person who can weigh the strength or weakness of a particular case. Op. S.C. Atty. Gen., August l 4, 1995. Thus, while this office has provided to you the relevant law in this area, we must defer to your judgment regarding the prosecution of the individual in question.

If there are any further questions, please advise.

N. Mark Rapop
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

~£2-,~
'RObertD.COOk
Deputy Attorney General